Attorney General should show end of year charity for mental health costs

A mentally ill man in Long Bay Prison Hospital is being forcibly injected as part of his treatment. When his tutor attempted to give the man some dignity, testing laws introduced in 2007, he lost in the Supreme Court and the NSW government is now seeking costs against the tutor of over $36,000. Attorney General Greg Smith has rejected calls that he forgive the costs order.

BACKGROUND

A mentally ill man has been in hospital for almost 10 years, having been found not guilty by reason of mental illness of manslaughter. He is being forcibly injected as part of his treatment, and is also being denied education opportunities.

Brett Collins, of Justice Action, is the mentally ill man’s primary carer. In advocating for him to be treated with dignity and humanity, Mr Collins challenged the decision of the Mental Health Review Tribunal to refuse to change arrangements for the man’s care.

Brett Collins is the principal advocate for the group Justice Action, who believe this inmate should be entitled to have an independent psychologist provide advice on this issue and allow him to be involved in his own treatment. Evidence from current psychiatrists is that he is currently fit to plead (including Bruce Westmore / Paul Mullin (former forensic psychologists in Victoria).

Practically every patient in the Long Bay Prison Hospital is being medicated.

Justice Action lost the appeal in the Supreme Court, which also awarded costs against Mr Collins. It is at the Attorney General’s discretion to pursue the costs order. Former AG John Hatzistergos decided to pursue costs.

Awarding costs against Mr Collins and indirectly therefore against Justice Action provides a strong warning to those who advocate on behalf of forensic patients. Such an outcome is neither fair nor just.

The Greens have asked Greg Smith to review the matter with a mind to not enforcing this costs order given the fact Mr Collins was at all times acting in the public interest to protect a vulnerable citizen. Mr Smith has indicated he is not willing to consider this.

The only way this costs order is likely to be withdrawn is if the Attorney intervenes.

THE MENTALLY ILL INMATE

The inmate was an Iranian Refugee who was an Australian Citizen who was working as an interpreter in Ashfield. His increasing concern about the situation in Iran led to a series of letters to politicians and the Police Commissioner for around 5 months which included threats to light a fire if his concerns were not responded to. His behaviour escalated.

Eventually, the mentally ill man took a 5L container of petrol and poured it on the carpet of his workplace. He lit this. Staff couldn’t get out easily. One woman died of smoke inhalation. He was distraught about the consequences of his actions and immediately admitted what he had done. He is clearly mentally ill and requiring ongoing care for his mental illness.

The inmate was found not guilty by reason of mental illness of manslaughter, and has been in Long Bay Prison Hospital for 9.5 years. His detention is indefinite.

THE TRIBUNAL & THE SUPREME COURT

There needs to be some supervision of the Mental Health Review Tribunal – which was being criticised in this case for having effectively rubber stamping the opinion of the treating team with no room for an independent advice.

This was the first case under new legislation (Mental Health Forensic Provisions Act 2007) taken to the Supreme Court – as an appeal from the tribunal to the Supreme Court.

In the decision of A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal and Anor [2010] NSWSC 1363 Johnson J made an order for costs against Mr Collins which has now been assessed at $36,148.17. The reasons given were that:

There was no practical utility in the Supreme Court granting leave to appeal.

There was no live legal issue.

There was no good reason why a costs order against Mr Collins should not be made.

In this instance Mr Collins the tutor of inmate “A” and at all times was attempting to ensure that as far as possible he is treated with respect and dignity.

GREENS NSW MP and Justice spokesperson David Shoebridge said:

“This was a case of genuine public interest, testing the Supreme Court’s ability to review a decision of the mental health tribunal that was allowing a detainee to be forcibly injected against his will.

“This man is being forcibly injected against his will and Mr Collins of Justice Action responded by using untested laws to review the decision of the Mental Health Review Tribunal that had approved the inmate’s involuntary treatment regime.

“This inmate has been in Long Bay Prison Hospital for almost ten years, having been found not guilty of manslaughter because of mental illness.

“The decision to chase Mr Collins of Justice Action for costs has sent a chilling message to other public interest advocates, that if they challenge the Mental Health Review Tribunal and lose they may well be held personally liable for the costs of the case.

“Involuntary medication for mental illness is an extreme invasion of a person’s civil rights and, while it may be entirely appropriate in an individual case, it must come with an open and accessible process to challenge its use. This case suggests that NSW does not have such a system.

“Given that Mr Collins was acting in what he perceived as the best interests of a vulnerable inmate with no legal right to run his own case, the Attorney General should immediately review the position and stop pursuing these costs.

“What we need is a little end of year charity here from the Attorney General to use his power to forgive this costs order.” Mr Shoebridge said.